from the fast-lanes-and-slow-lanes dept

A few months ago, John Oliver did an amazing job making net neutrality into a mainstream issue, by reducing it to its core element: that it's all about "preventing broadband provider fuckery." That was a great segment that truly went viral. But, still, the TV folks have remained pretty quiet on the issue. However, it appears that another late night comedian has jumped into the game as well, with Jimmy Kimmel doing a segment last week trying to explain the fast lane/slow lane issue in rather graphic form:

It's not quite as detailed or informative as Oliver's, and the "joke" is a bit obvious (which is a bit surprising, since Kimmel tends to go beyond the obvious jokes in his comedy), but it's still a good sign to see that the issue is becoming at least somewhat more mainstream.

from the just-too-expensive dept

Most of the discussion on the fight around net neutrality has focused on the big broadband providers, and to a lesser extent, the big tech companies. Unfortunately, that leaves out who will almost certainly be most impacted by all of this: the end users, as well as small startups and entrepreneurs. Many of you recognize the direct potential impact on you if your connections to certain content is stuck in the slow lane, but there's a much bigger impact out there in terms of how it will scare off or kill tons of new and powerful startups and innovations. Think about how many internet services you use regularly today. Consider how many of them didn't even exist five or ten years ago. How many of them have jumped up out of nowhere? Without a strong and open internet, realize how many future startups will never even come into existence, because the barriers and hurdles to starting a business become much, much higher.

Here are two compelling stories of startups which, frankly, almost certainly wouldn't exist if the telcos get their wish for fast lanes and slow lanes. The first comes from Ryan Singel, a former reporter/editor at Wired, who left a few years ago to build his own company, Contextly. He recently filed some powerful comments with the FCC. The FCC is receiving an influx of comments (over 45,000 last I checked) and that's even though the site was down for a while in the wake of John Oliver's plea to online commenters to speak out against "cable company fuckery." Not surprisingly, many of those comments are short (and angry) and simply state that the FCC should protect net neutrality and not give in to broadband providers' attempts to create a slow lane on the internet.

While those comments are useful, it's the thoughtful, detailed comments like Singel's that are even more important, and moving, in terms of showing how this debate has a real and serious impact on innovation. Singel's startup, Contextly, tries to be the antidote to all of those crappy "recommended content" services that many news sites use to point you to "other things you may be interested in" on other sites, but always seem to actually consist of scantily clad women and bogus diet "secrets" because that's what pays the best. Instead, it focuses on keeping people on the sites they're already on, pointing them to related content on that site (similar to what we have beneath our stories here on Techdirt, though we built our own system for that).

Singel eloquently lays out how Contextly almost certainly wouldn't exist under the FCC's proposal which would allow for "commercially reasonable" discrimination.

Like many other startups, if there were a fast lane, we would have needed to be in it on
day one. We provide content recommendations at the bottom of news stories. That means that
every time a news story on one of our publishers is read, a request is made to our servers to get
the right recommendations and we return them along with thumbnail images—anywhere from 4
to 16 images per page. While these are individually not large, the bandwidth quickly adds up
when you are serving hundreds of millions of images a month, and need to do so quickly to
readers around the country and the world. It would not matter if the “slow lane” was “pretty fast.”
What would matter was whether we could serve our clients as effectively as our competitors.
Being unequal alone would put us at a disadvantage.

We are able to manage these costs because the cost of technology and bandwidth has
dropped massively, due to technology and competition. This has made it possible for a
bootstrapped Contextly—founded with the modest savings of a former journalist—to compete
with companies that have tens of millions of dollars in capital.

[....]

The FCC should not make it even harder to create a company by adopting its proposal
to authorize “commercially reasonable” discrimination rather than to forbid “unreasonable
discrimination.” AT&T and Verizon have made it very clear they would like to extract tolls from
online services such as Contextly. That's despite the fact that it's their customers who are
requesting news stories from our publisher clients. Both Contextly and our publisher clients pay
for our outgoing and incoming bandwidth to our hosting providers - but now the FCC proposes
to let consumer Internet Service Providers extract fees on both sides of their networks.

If this were the case before I started Contextly using my savings (which were not
substantial), I would have never started the company. There's no way I could have afforded to
pay Verizon and AT&T and Comcast and Cox and Sprint and Time Warner Cable and AOL and
T-Mobile to get Contextly images showing up quickly. Our competitors—the ones who post ads
to diet pills and “hot” photos of fitness enthusiasts—could have buried us just by paying for the
fast lane—without even needed exclusivity, which they could have negotiated under the
Commission’s proposal.

Even the very idea of "commercially reasonable" is somewhat offensive to innovation and enterpreneurship, because it's bureaucrat-speak for "hire crazy expensive lawyers" and argue over this for years. That is not a recipe for innovation:

Hiring lawyers and negotiating complicated contracts is expensive. I incorporated
Contextly myself to avoid significant legal fees and operated on handshake agreements with
early customers. Negotiating performance agreements with ISPs would have required resources
and skills I didn't possess (and still likely don't have). ISPs could have also asked for equity at a
time where I'd have had no choice but to accept their terms—since they control the pipes that
get my clients' news and information to American citizens. My equity would not have been worth
much at the time, so I would have had to give up much of my company, if not a majority, to get it
off the ground.

As Singel notes, "commercially reasonable" is not a standard for enterpreneurship and innovation. It's a standard for big companies to kill innovation:

...the factors of the commercial reasonableness test are too vague to provide
certainty—except for the certainty of expensive and time-consuming litigation if we choose to
pursue it. These standards include “harm to consumers” or “to competition” and evaluation of a
totality-of-the-circumstances. These standards are an invitation to hire dozens of expert
witnesses and white shoe lawyers well versed in telecommunications, competition, and
consumer law without sufficient guideposts. This standard has already failed to provide any
guidance in the one other place it has been used--data roaming.

.... Indeed, a “commercial reasonableness” standard is a gift to the cable and phone
companies who have armies of lawyers and can crush us in legal disputes at the FCC.

The second story is a similar one, coming from Jamie Wilkinson, the founder and CEO of VHX, an online video distribution company that helps film and video makers make their videos directly available to fans. Since VHX is in the online video distribution industry, the fact that Netflix is suddenly having to cut deals with ISPs to avoid clogged pipes is of great concern. As he notes, the fact that he might have to pay for access to a fast lane is already chilling his business, as investors are suddenly less willing to fund a startup like his, since they don't know how expensive it's going to be to have to pay off all the big broadband providers, just to offer the same video experience as Netflix or YouTube.

This chilling effect is very real and it's being felt by many startups already -- and hopefully more of them will start to speak out, like Singel and Wilkinson.

What's most incredible to me is that out-of-touch politicians who insist they're out there "supporting small business and innovation" are often the most against net neutrality -- even though their position will kill off many small businesses and innovation. Frankly, I still don't quite understand how net neutrality became a partisan "left vs. right" issue. In the early days, after the term was first coined, it wasn't a partisan issue and there were some interesting discussions about what net neutrality meant and why it was important. However, somewhere in the mid-2000s, it suddenly became a "Democratic" issue, with "Republicans" being opposed to it, claiming it was "regulating the internet." However, as we've discussed, the internet is already heavily regulated. The question on net neutrality isn't about regulating or not regulating the internet, but figuring out how it will be regulated: will it be regulated in a way that allows for significant competition and innovation -- or will it be regulated to allow a few giant oligopolists to become gatekeepers to innovation.

Considering that both Democrats and Republicans like to talk about how important innovation, small business and entrepreneurs are, it makes no sense for them to support plans that would actively harm innovation and small businesses -- and yet, that appears to be what many are doing. Obviously, much of this is because the big winners if net neutrality dies will be Comcast, AT&T and Verizon -- three giant companies who also are huge political donors. But if Congress (and, for that matter, the FCC) are serious about supporting and encouraging entrepreneurship and innovation, they should be paying much more attention to what those startups are saying about how all of this impacts their business right now.

And then the question is pretty straightforward: do they really support innovation, small business and entrepreneurship? Or do they support the big telcos looking to set up tollbooths to make innovation more expensive?

from the fast-lane dept

Yesterday reports started leaking about how FCC boss Tom Wheeler was getting ready to release his proposal for "new" net neutrality rules, to be voted on in a few weeks. They've now been introduced -- and Wheeler insists that all the whining and hand-wringing from yesterday was wrong. Except that's not true.

These new proposed rules are a response to a court tossing out the FCC's 2010 rules for not actually falling under the FCC's mandate. We pointed out that if the FCC were serious (and it's not), it should be focusing on increasing competition (which it's not). Congress certainly isn't going to do anything. Like previous FCC bosses, Commissioner Tom Wheeler has made it pretty clear that he's too timid to do anything serious, and instead will seek to find some sort of weak middle ground. Because there seems to be a rule that, if you're to become FCC Commissioner, you can't take a solid stand, but instead have to take a weak middle ground position and pretend it's a strong stand.

But what's currently being suggested may actually be worse. Because this opens the door to killing off net neutrality while pretending it's supporting net neutrality. As Stacey Higginbotham points out, even if Tom Wheeler believes this proposal makes sense, it's pretty ridiculous to claim it's net neutrality or about protecting an open internet. Wheeler should step up and admit what he's doing: killing off net neutrality to create a system that lets the big broadband providers double charge -- and then explain why he thinks that's necessary. Pretending this is net neutrality is a joke. Here's the basic proposals:

That all ISPs must transparently disclose to their subscribers and users all relevant information as to the policies that govern their network;

That no legal content may be blocked; and

That ISPs may not act in a commercially unreasonable manner to harm the Internet, including favoring the traffic from an affiliated entity.

The key issue is that last one, in which the FCC claims it will still have the ability to stop "commercially unreasonable" activities by broadband providers, while refusing any attempt to explain what commercially unreasonable means. At the same time, it makes it pretty clear that "commercially reasonable" (again, undefined) rules will be allowed -- and it's likely this means allowing ISPs to create "fast lanes" by which they can charge more, so long as anyone with a lot of cash can also pay more.

This is not net neutrality. Yes, the 2nd rule means that no ISP will get away with the outright banning of access to websites, but no ISP was seriously considering that anyway. This bans a practice no one was going to do, meaning it doesn't ban anything. But by opening up "commercially reasonable" discrimination, it's allowing ISPs to create privileged "fast lanes" by which large internet players can "pay" to have preferred access to users. If you have a fast lane, by definition you also need a slow lane. So the (reasonable) fear here is that smaller entities, who can't pay for the fast lane, basically start out with degraded service compared to the big guys who can (and will) pay.

That means that services that don't pay up are throttled. By definition.

It's exactly what the big ISPs have wanted all along, which is a system to double charge big companies, who will now have to pay for both their own bandwidth and a portion of your bandwidth. If you think "hey, I already pay for my bandwidth," you're right. And now you'll likely have to pay much more, because the big companies who pay are going to pass the costs on to you. And, you'll have fewer interesting new services because the barriers to entry will be higher. So, the end result is the immensely profitable duopoly of internet service providers get more profitable and you pay more. Big internet companies pay off the broadband providers to stay fast, while startups and innovation are basically more difficult to create, because they're going to have to set aside a huge chunk of money to pay for some of the bandwidth that you're already paying for (and probably not getting anyway).

The Comcasts and AT&T's and Verizons of the world are going to parade up and down about how this will let them invest in better networks and provide better services, but there is absolutely no incentive here for them to actually do so. In fact, they have every incentive in the world to degrade service in the "slow lane" to make it less useful, driving more companies to need to pay for the fast lane.

These aren't rules for an open internet or for net neutrality. These are rules to kill that off.

"Commercially reasonable" are the weasel words here that effectively sell out the internet. The old rules were dreadful, and these rules are still just in proposal stages, but Wheeler's first foray into net neutrality is a joke. He's doing the same thing as his predecessor in refusing to stand up and say what he actually means, because he knows that what he's proposing is bad news.